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UN and IACHR Rapporteurs warn of arbitrary application of the Organic Communications Act

November 3, 2016

WASHINGTON / GENEVA – The United Nations Special Rapporteur on the right to freedom of opinion and expression, David Kaye, and the Inter-American Commission on Human Rights’ Special Rapporteur for Freedom of Expression, Edison Lanza, warned of the serious effects of the Organic Communications Act and its application to freedom of expression in Ecuador, urging authorities to bring it in line with international standards on the issue.

Since the Organic Communication Law of Ecuador entered into force in 2013, the Rapporteurs have warned that it failed in a number of ways to follow international standards. They have observed with concern that "it has been used as an instrument to unduly interfere in the content of media outlets and punish them, especially when their coverage is unfavorable or questions the government's actions and decisions."

Specifically, they said that "it is concerning that certain obligations established in the Act are not precisely defined by law, and their application, together with the severe punishments for failure to comply, gravely inhibit freedom of expression and opinion in Ecuador."

The Rapporteurs have verified the media has been regularly subject to reprimands and penalties based on legally vague and ambiguous concepts by the Communications Superintendence, a body that is insufficiently independent from the executive branch. This "has a paralyzing and chilling effect on the work of journalists and the media in Ecuador."

In this regard, the Rapporteur recalled that "any legal restriction on the right to freedom of expression must be sufficiently clear and precise to prevent its discretionary and arbitrary application."

"Any restriction on freedom of expression must be explicitly established by law, and even when it has legitimate goals—ensuring respect for the rights or reputation of others and to protect national security, public order, or public health or morals—it must be proportional and necessary in a democratic society," they said.

Of particular concern to the Rapporteurs was the application of the Act’s provisions that seek to protect the honor and reputation of public officials, as well as the section on the right to correction and response.

"The law in question and its interpretation by administrative authorities prioritize the good name, reputation, and interests of officials over the public debate of ideas and the circulation of information as a way of providing social scrutiny of the exercise of power," they said.

"This appears to be happening in numerous cases, and we have contacted the State with regard to the newspapers El Universo and La Hora, which have suffered the forced publication of information and economic sanctions that are disproportionate."

The Rapporteurs also expressed concern over information received in the context of an auction currently underway in Ecuador to grant and renew a massive section of the radio spectrum. The information indicates that the process may not have sufficient transparency guarantees in a pre-election context, thereby inhibiting freedom of expression.

The Rapporteurs sent a joint letter to the Ecuadorian government expressing these concerns. In that letter, they requested information on the application of the Organic Communications Act to the cases regarding which they have received information, as well as details on the frequency auction.

They hope the response to the request will open a dialogue on these and other issues related to the exercise of the right to freedom of expression.

END

Mr. David Kaye (USA) was appointed as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in August 2014 by the United Nations Human Rights Council.

The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms. Special Procedures mandate-holders are independent human rights experts appointed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. They are not UN staff and are independent from any government or organization. They serve in their individual capacity and do not receive a salary for their work. Learn more, log on to: http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/OpinionIndex.aspx

Mr. Edison Lanza (Uruguay) was appointed as Special Rapporteur for Freedom of Expression in July 2014 by the Inter-American Commission on Human Rights.

The Office of the Special Rapporteur for Freedom of Expression was created by the IACHR to encourage the defence of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system. For more information, log on to: